State v. McKiel
| Decision Date | 04 October 1927 |
| Citation | 259 P. 917,122 Or. 504 |
| Parties | STATE v. MCKIEL. |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Columbia County; J. A. Eakin, Judge.
George McKiel was convicted of rape, and he appeals. Reversed and remanded.
Dan J. Malarkey, of Portland (Malarkey, Seabrook & Dibble, of Portland, C. W. Robison, of Astoria, and Harold Banta, of McMinnville, on the brief), for appellant.
John L Foote, of St. Helens (I. H. Van Winkle, Atty. Gen., on the brief), for the State.
Defendant appeals from a judgment of conviction of the crime of rape upon one Betty Gassner, a girl about 15 years old and under the age of consent.
Defendant and his friend Earl Elliott were attending a public dance. While there the defendant, a man of 27 years of age, met Betty for the first time. It was not a matter of formal introduction. It appears, without contradiction, that she had several drinks of moonshine whisky at the dance, but they were not given to her by defendant. After the dance was over Betty and a girl companion started home in an automobile with defendant and his friend. They did not, however, go directly home, but drove in an opposite direction, turning off on a side road from the Columbia River Highway. The state contends the crime was committed along this country road. Defendant admits taking Betty and her friend on this automobile ride as above stated, but asserts that he was acting only in the role of a "Good Samaritan." He says that Betty was boisterously and hilariously drunk; that he stopped the car when she became sick; and that he assisted her while she vomited. He denies ever having had sexual intercourse with her.
This is a meager statement of the sordid facts of this case, but we think it sufficient to comprehend the legal questions involved.
Before the taking of testimony the jury viewed the premises where the crime was alleged to have been committed. A contention arose as to whether it was possible for the defendant, with his heavy Hudson coach, to have driven to one side of the road without being mired. During the course of the trial, without the knowledge or consent of the court, two of the jurors drove their automobile to the place in question and conducted an independent experiment to see whether it was possible for the defendant to have driven his car at the place and in the manner as claimed by the prosecutrix. On the basis of the affidavits of these jurors, a new trial was asked by defendant, but refused by the trial court. It is well established in this jurisdiction that a juror cannot thus impeach his verdict. This question has so many times been decided adversely to the contention of appellant that it is not deemed necessary again to cite authorities. However, what was said in State v. Ausplund, 86 Or. 121, 167 P. 1019, is particularly applicable and controlling. The misconduct of the jurors might well have been considered in contempt of court, but it did not warrant the granting of a new trial.
We think there is merit in the contention of counsel for appellant that the court unduly restricted his cross-examination of the prosecutrix. While the extent of the examination is largely a matter of discretion, it is well established that, in this kind of cases, much latitude is allowed. State v. Weston, 102 Or. 102, 201 P. 1083. The very nature of the charge is apt to arouse sympathy and create bias. The testimony of the prosecutrix should therefore, be subjected to the closest scrutiny as, in most instances, the conviction of the defendant hinges upon whether the jury believes the woman or the man. Ordinarily, third persons are not present at the time of the commission of the alleged crime. Defendant was entitled to test the accuracy and probability of the girl's story from every angle. It is true that the examination cannot extend indefinitely into the field of incompetent, immaterial, or collateral matters, but it is better to err on the side of liberality than to deny defendant the right to make a searching inquiry. The entire transcript of the evidence has been read to determine this phase of the case. Consider the following portions of the record on direct examination:
On cross-examination:
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State v. Gardner
...Schneider v. Moe, 151 Or. 353, 50 P.2d 577 (1935); Frank v. Matthiesen, 115 Or. 349, 236 P. 754 (1925); But see, State v. McKiel, 122 Or. 504, 505, 259 P. 917 (1927).3 Eckel v. Breeze, 221 Or. 572, 352 P.2d 460 (1960); Saunders v. A. M. Williams & Co., 155 Or. 1, 62 P.2d 260 (1936).4 Hooton......
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Matthews v. State
...590, 162 S.E.2d 45 (1968) (proper to cross-examine witness as to quantity of alcohol he had consumed prior to incident); State v. McKiel, 122 Or. 504, 259 P. 917 (1927) (counsel has right to inquire as to the extent of witness's intoxication and in what way, if at all, it affected her memor......
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State v. Driver
...disprove," id., and "hinges upon whether the jury believes the woman or the man," id. at 460, 421 P.2d 388 (quoting State v. McKiel, 122 Or. 504, 507-08, 259 P. 917 (1927)). However, Nab's holding allowing admission of cross-examination evidence does not extend to extrinsic evidence. Althou......
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State v. Taylor
... ... People v. Singh, 19 Cal.App.2d 128, ... 64 P.2d 1149; Bouyer v. State, 57 Okl.Cr. 22, 43 ... P.2d 153; Prochneau v. State, 32 Okl.Cr. 210, 240 P ... 1090; Grim v. State, 32 Okl.Cr. 297, 240 P. 1093; ... Pickering v. State, 32 Okl.Cr. 315, 240 P. 1095; ... [177 P.2d 470] ... McKiel, 122 Or. 504, 259 P. 917; People v. Crow, 48 ... Cal.App.2d 666, 120 P.2d 686; Dunville v. State, 188 ... Ind. 373, 123 N.E. 689 ... These ... questions and the offer, however, did not encompass ... intoxication, but merely the drinking of intoxicating liquor; ... therefore, even ... ...